BOARD DATE:	  20 November 2014

		DOCKET NUMBER:  AR20140003416 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests approval to transfer the remaining balance of his educational benefits to his children under the provisions of the Post-9/11 Transfer of Benefits (TEB) program.

2.  He states:

	a.  that he is a retired Army National Guard (ARNG), lieutenant colonel, with 31 years of service who was activated twice and deployed in support of Operation Iraqi Freedom and Operation New Dawn.

	b.  he was a task force commander and was extremely busy while deployed so, he did not have the means or time to see this transfer through.

	c.  when connectivity was good, he had a representative on staff to assist the Soldiers, but he took a back seat to them. 

	d.  the connectivity was bad and he attempted to transfer his benefits with no success.

	e.  he was briefed that the transfer of benefits had to occur while he was on active duty, which has an appeal in progress, so he did not know that he could transfer his benefits while an active Reservist.

	f.  he was injured during the last few months of his deployment and transferred to the Wounded Warrior Unit at Fort Belvoir.  He was ultimately discharged from the Fort Belvoir, returned to his home State, out-processed, and retired within a few months.

	g.  the process to transfer his benefits was complicated and he believes he submitted the wrong forms.

	h.  he does not know how much of his benefit is available for transfer, possibility enough for a year of schooling for his children.

	i.  he simply wants a letter stating that he can transfer his benefit and the state of West Virginia will take care of the rest.

3.  He provides:

* a self-authored statement
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* three orders
* a DD Form 689 (Individual Sick Slip)
* a DA Form 638 (Recommendation for Award) and allied documents
* U.S. Army Retired Identification Card
* Certificate of Eligibility
* a memorandum

CONSIDERATION OF EVIDENCE:

1.  After having prior active and Reserve enlisted service in the U.S. Marine Corps, the applicant was appointed as a West Virginia Army National Guard (WVARNG) commissioned officer on 15 June 1991.  The applicant retired from the WVARNG on 7 August 2012 in the rank/grade of lieutenant colonel/O-5 after completing a total of 31 years of creditable service.

2.  He submitted:

	a.  Orders Number 230-306, dated 18 August 2010, which show he was ordered to active duty with a report date of 13 September 2010 for a period not to exceed 400 days.

	b.  Orders Number 313-0645, dated 9 November 2010, which show he was deployed in a temporary change of station status in support of Operation New Dawn, with duty in Kuwait.

	c.  Orders Number A-08-118962, dated 31 August 2011, which show he was retained on active duty in order to participate in the Reserve Component Warriors in Transition medical retention processing program for the purpose of medical evaluation.

	d.  a DD Form 689, dated 20 August 2011, which shows he was treated for a hernia and gout.

	e.  a DA Form 638 and allied documents, dated 30 April 2011, which show he was awarded the Bronze Star Medal for his service as the Task Force Commander while deployed to Kuwait from 16 November 2010 to 17 August 2011.

	f.  a DD Form 214, which shows he was released from active duty after the completion of his required active service on 18 December 2011 and transferred to the WVARNG.

	g.  a memorandum from the State of West Virginia, Office of the Adjutant General, dated 7 June 2012, Subject:  Non-selection for Retention, which stated that he was not selected for retention in the ARNG, would be separated on 
7 August 2012, and upon being discharged could request to be transferred to the Retired Reserve.

	h.  a Certificate of Eligibility from the Department of Veterans Affairs (VA), dated 24 February 2014, which certified that:

		(1)  he was entitled to benefits for an approved program of education or training under the Post 9/11 GI Bill.

		(2)  noted that they had received his request to transfer his entitlement to a dependent.  However, the VA explained that they did not establish eligibility to approve transfer of entitlement and explained that he should contact his service to establish his eligibility and transfer his entitlement to an eligible dependent.  

		(3)  he had 5 months and 15 days of full-time benefits remaining.

3.  Public Law 110-252 limits the eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve.  

	a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent (on or after 1 August 2009).  

	b.  A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer to eligible children.  

	c.  A Soldier may only transfer to eligible family members.  To be considered an eligible family member the spouse or child must be enrolled in the Defense Enrolment Eligibility Reporting System (DEERS) and be eligible for DEERS benefits.  Children lose eligible family member status upon turning age 21 or at marriage.  Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS).  Wards of State are not eligible for the benefits.  Once the benefits are transferred, children may use the benefits up to age 26.  

	d.  A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.  
	
	e.  A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits.  

	f.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90 days) of the program.  The Army, Department of Defense (DOD), and VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits.  

	g.  A Soldier must initially request to transfer benefits on the DOD TEB online database.  The TEB online database was operational 29 June 2009.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access.  The respective dependent must then submit an application for VA educational benefits, VA Form 22-1990e, to request to use the benefits.  

	h.  Changes to the amount of months allocated to family members can be made at anytime, to include once a member leaves military service, provided the service member allocates at least 1 month of benefits prior to separation.  If the service member allocates 0 months and subsequently leaves military service, he or she is not authorized to transfer unused benefits.  

	i.  The VA is restricted to pay for education benefits by compensating no more than one retroactive year from the date a claim is received by the VA.  

4.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states any member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill and

	a.  has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or

	b.  has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, is precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute, or

	c.  is or becomes retirement eligible during the period from 1 August 2009 through 1 August 2013.  A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve service.

5.  The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

6.  Title 38, U.S. Code, section 3319, prohibits service members no longer on active duty from transferring of educational benefits.  The legislation specifically states "an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the armed forces when the transfer is executed."  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was released from active duty on 18 December 2011 and transferred to the Retired Reserve on 7 August 2012.  There is no evidence he attempted to transfer his Post 9/11 educational benefits to his children while he was on active duty and/or in the Selected Reserve.  

2.  The Army, DOD, and VA conducted massive public campaigns that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  A Soldier must meet various criteria to qualify for transfer of benefits to an eligible family member; most importantly, the Soldier must be on active duty or in the Selected Reserve at the time of transfer.

3.  The law that governs the Post 9/11 TEB allows a member who transferred his or her benefits while on active duty or in the Selected Reserve to reallocate or revoke the months of entitlement after he or she retires.  However, this is only allowed to a dependent or spouse for whom the member has already transferred at least one month of the entitlement to.  In the applicant's case, there is no evidence nor did he submit any evidence that shows he transferred at least one month of entitlements to his children.  Therefore, his children are ineligible for the transfer. 

4.  There are no provisions at this time to allow individuals to retroactively change the allocation or transfer benefits once they are no longer members of the armed forces.  Unless there is a future change to the enacted legislation, a member will not be eligible to transfer educational benefits to their dependents after they retire or reallocate the benefit to a dependent or spouse for whom the member did not already transfer at least one month of the entitlement.

5.  There is neither an error nor an injustice in the applicant's transfer of benefits processing.  In view of the foregoing, he is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X______  __X______  __X___  DENY APPLICATION











BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X_______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20140003416





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ABCMR Record of Proceedings (cont)                                         AR20140003416



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